- The Washington Times - Saturday, February 5, 2005

On Jan. 23, the U.S.. Supreme Court denied review of a Florida Supreme Court opinion declaring a Florida Statute, known as “Terri’s Law,” unconstitutional.

The case, Bush vs. Schiavo, has drawn worldwide attention to the plight of Terri Schiavo, a handicapped woman in danger of being starved to death by her husband with the blessing and approval of the Florida Courts.

Mrs. Schiavo collapsed under mysterious circumstances never adequately explained. Her husband, who has given inconsistent accounts of the events, recovered more than a million dollars in a medical malpractice lawsuit associated with her collapse.

In pleading his case to the jury making the award, Mr. Schiavo asserted he loved his wife, took his marriage vows seriously and that he needed millions of dollars to provide the care necessary to sustain her life and maximize her recovery.

Since getting his hands on the money, however, Mr. Schiavo has refused to provide rehabilitative care for his wife; ordered withdrawal of antibiotics to protect his wife against infections; fathered two children by another woman, melted down her wedding rings to make a ring for himself and killed her cats.

He also sought and received an order from a Florida court authorizing the starvation and dehydration of his brain-damaged wife, based solely on oral statements he claimed she made but which are disputed by other members of her family.

At no time was Mrs. Schiavo (who is unable to speak for herself) afforded independent counsel or a jury trial. Terri’s Law — the legislature’s effort to afford Mrs. Schiavo and others similarly situated, due process protections not afforded by the courts — was struck down by Florida’s Supreme Court as an unconstitutional legislative encroachment on the court’s turf.

It is noteworthy that the U.S. Supreme Court decision to deny review of the Florida Supreme Court decision came on the 32nd anniversary of its own decision in Roe vs. Wade. That case effectively held an unborn child is a “nonperson” entitled to none of the protections of the U.S. Constitution. The case paved the way for abortion on demand and allowed an unborn child to be killed, if it was inconvenient, unwanted or imperfect.

Opponents of Roe have argued the case rationale threatened others who may be deemed inconvenient, unwanted or imperfect. Bush vs. Schiavo has proved them right.

As a result of the Schiavo decision, a convicted capital felon in Florida receives more due process protection than a handicapped person at risk for starvation or dehydration because they have become burdensome to their family.

Capital felons in Florida are entitled to a trial by jury, independent counsel, competent representation and automatic review of their death penalty by the Supreme Court of Florida. By contrast, Terri Schiavo received none of these protections.

Perhaps even more ironically, if the most heinous mass murderer was to receive a death sentence by starvation or dehydration, it would be overturned by the courts for violating the Constitution’s prohibition of cruel and unusual punishment.

Though capital felons are recognized as “persons” within the language and meaning of the U.S. Constitution, it is obvious that, in the courts’ view, those who share Terri Schiavo’s disabilities fall outside the pale of “personhood.”

For years, advocates have lamented the disabled were not treated as “whole persons ” worthy of the full protection of law. The courts in Bush vs. Schiavo have proved them right.

Any time “personhood ” is withdrawn from a human being, legal protections are eroded. That is why slaves were sold like cotton or tobacco earlier in American history. It is why more than 6 million Jews were exterminated with only muted protests in Nazi Germany. It is why there have been “ethnic cleansings” in Eastern Europe. And it’s why human embryos are cut up like fish bait in the name of “research ” in this country today.

America’s courts historically have been bulwarks of protection for those vulnerable to exploitation by the strong.

For many, it was often in court that the promises of due process and equal protection were first realized. Increasingly, however, America’s courts are compromising protections which have been the historic birthright of all Americans.

Courts are no longer protectors of rights but, increasingly, aid and abet the powerful who would deprive the least among us of their rights. This trend must be reversed if the American claiming of offering liberty and justice for all is to continue.

KENNETH L. CONNOR

Mr. Connor served as counsel to Florida Gov. Jeb Bush in the Bush vs. Schiavo case. He is chairman of the Center for a Just Society.

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